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AB-3260 Department of Food and Agriculture: administrative civil penalties: notice.(2017-2018)

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Date Published: 08/08/2018 09:00 PM
AB3260:v96#DOCUMENT

Enrolled  August 08, 2018
Passed  IN  Senate  August 06, 2018
Passed  IN  Assembly  May 17, 2018
Amended  IN  Assembly  April 30, 2018
Amended  IN  Assembly  April 16, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 3260


Introduced by Committee on Agriculture

March 21, 2018


An act to amend Sections 47025, 59087, 59111, and 64563 of the Food and Agricultural Code, relating to the Department of Food and Agriculture.


LEGISLATIVE COUNSEL'S DIGEST


AB 3260, Committee on Agriculture. Department of Food and Agriculture: administrative civil penalties: notice.
(1) Existing law authorizes a California farmer or rancher who obtains a certified producer’s certificate to sell agricultural products, as defined, directly to the public at a certified farmers’ market, as specified. Existing law provides, among other things, that it is unlawful for any person operating under these provisions to commit certain acts related to the conduct of farmers’ markets, including to deceptively prepare, pack, place, deliver, load, ship, transport, or sell those products. Existing law provides that in lieu of prosecution, but not precluding suspension or revocation of certified producer’s certificates or certified farmers’ market certificates, the Secretary of Food and Agriculture or a county agricultural commissioner may levy a civil penalty against a person who violates these provisions, or any regulation implemented pursuant to these provisions, pursuant to a hearing and appeals process, as specified. Existing law provides that a county agricultural commissioner’s authority to administer administrative civil penalties, suspensions, or both, is subject to specified jurisdictional requirements, but that the secretary’s authority is not subject to those requirements.
This bill would clarify that the secretary or a county agricultural commissioner may impose an administrative civil penalty or suspension of certification, or both, for a violation, pursuant to the specified hearing and appeals process. The bill would delete the above-described provisions regarding jurisdictional requirements.
(2) Existing law establishes the California Marketing Act of 1937, which governs the marketing of commodities in this state. The act requires that a notice of issuance of any order that makes effective a marketing order or marketing agreement, or any suspension, amendment, or termination of a marketing order or marketing agreement, be posted on a public bulletin board that the Secretary of Food and Agriculture is required to maintain in his or her office. The act authorizes the secretary to terminate, without public hearing, certain inoperative marketing orders or marketing agreements after giving notice in the same manner.
Existing law, the California Beef Council Law, establishes the California Beef Council to perform various advisory and other duties relating to the beef industry. Existing law authorizes the secretary, upon recommendation by the council, to establish regulations for the administration and enforcement of the California Beef Council Law. Existing law requires a copy of the regulations to be posted on a bulletin board maintained by the secretary in his or her office and a copy to be published in a newspaper of general circulation, as specified.
This bill would require the secretary to post notice of the above-described marketing orders, marketing agreements, and beef industry regulations on the Department of Food and Agriculture’s Internet Web site instead of a bulletin board.
(3) This bill would also make various nonsubstantive changes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 47025 of the Food and Agricultural Code is amended to read:

47025.
 (a) In lieu of prosecution, but not precluding suspension or revocation of certified producer’s certificates or certified farmers’ market certificates pursuant to any other authority, the secretary or the county agricultural commissioner may impose an administrative civil penalty, suspension of certification, or both, on a person who violates this chapter or any regulation implemented pursuant to this chapter.
(b) A civil penalty pursuant to this section shall be levied in proportion to the violation, measured as either “serious,” “moderate,” or “minor.”
(1) “Serious” violations are repeat or intentional violations, punishable by a civil penalty of not less than four hundred one dollars ($401) and up to a maximum of one thousand dollars ($1,000) per violation.
(2) “Moderate” violations are repeat violations or violations that are not intentional, punishable by a civil penalty of not less than one hundred fifty-one dollars ($151), but not more than four hundred dollars ($400) per violation.
(3) “Minor” violations are violations that are procedural in nature, punishable by a civil penalty of not less than fifty dollars ($50), but not more than one hundred fifty dollars ($150) per violation.
(c) Before a civil penalty or suspension is imposed pursuant to this section, the person charged with the violation shall receive written notice of the proposed action including the nature of the violation and, if applicable, the amount of the proposed civil penalty. The person shall have the right to request a hearing within 20 days after receiving notice of the proposed action. A notice that is sent by certified mail to the last known address of the person charged shall be considered received even if delivery is refused or if the notice is not accepted at that address. If a hearing is requested, notice of the time and place of the hearing shall be given at least 10 days before the date set for the hearing. At the hearing, the person shall be given an opportunity to review the commissioner’s evidence and to present evidence on his or her own behalf. If a hearing is not timely requested, the commissioner may take the action proposed without a hearing.
(d) If the person, upon whom the commissioner imposed a civil penalty or suspension, requested and appeared at a hearing, the person may appeal the commissioner’s decision to the secretary within 30 days of the date of receiving a copy of the commissioner’s decision. The following procedures apply to the appeal:
(1) The appeal shall be in writing and signed by the appellant or his or her authorized agent, state the grounds for the appeal, and include a copy of the commissioner’s decision. The appellant shall file a copy of the appeal with the commissioner at the same time it is filed with the secretary.
(2) The appellant and the commissioner, at the time of filing the appeal or within 10 days thereafter or at a later time prescribed by the secretary, may present the record of the hearing and a written argument to the secretary stating the ground for affirming, modifying, or reversing the commissioner’s decision.
(3) The secretary may grant oral arguments upon application made at the time written arguments are filed.
(4) If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days before the date set therefor. The times may be altered by mutual agreement of the appellant, the commissioner, and the secretary.
(5) The secretary shall decide the appeal on the record of the hearing, including the written evidence and the written argument described in paragraph (2), that he or she has received. If the secretary finds substantial evidence in the record to support the commissioner’s decision, the secretary shall affirm the decision.
(6) The secretary shall render a written decision within 45 days of the date of appeal or within 15 days of the date of oral arguments or as soon thereafter as practical.
(7) On an appeal pursuant to this section, the secretary may affirm the commissioner’s decision, modify the commissioner’s decision by reducing or increasing the amount of the civil penalty levied, if applicable, so that it is within the secretary’s guidelines for imposing civil penalties, or reverse the commissioner’s decision. Any civil penalty increased by the secretary shall not be higher than that proposed in the commissioner’s notice of proposed action given pursuant to subdivision (c). A copy of the secretary’s decision shall be delivered or mailed to the appellant and the commissioner.
(8) Any person who does not request a hearing with the commissioner pursuant to a civil penalty or suspension imposed under subdivision (c) may not file an appeal to the secretary pursuant to this subdivision.
(9) Review of a decision of the secretary may be sought by the appellant within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
(e) After the exhaustion of the appeal and review of procedures provided in this section, the commissioner, or his or her representative, may file a certified copy of a final decision of the commissioner that directs the payment of a civil penalty or provides for the imposition of a suspension, and, if applicable, a copy of any decision of the secretary, or his or her authorized representative, rendered on an appeal from the commissioner’s decision and a copy of any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. No fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section.
(f) In addition to the civil penalties prescribed in subdivision (b), or a suspension imposed pursuant to this section, the appellant may be required to cover the cost of the administrative hearing unless the decision of the secretary or county agricultural commissioner is overturned.
(g) “Person,” as used in this section, means any applicant for a certified producers’ certificate or certified farmers’ market certificate, producer of agricultural products, certified producer, family member or employees of a certified producer, certified farmers’ market manager, or certified farmers’ market operator engaged or involved in the direct marketing of agricultural products at a certified farmers’ market pursuant to this chapter.

SEC. 2.

 Section 59087 of the Food and Agricultural Code is amended to read:

59087.
 (a) The secretary may terminate, without a public hearing, any marketing order or marketing agreement that has been inoperative for three consecutive marketing seasons after giving notice of intent to terminate the marketing order or marketing agreement pursuant to subdivision (b) of this section.
(b) The notice shall be posted on the department’s Internet Web site. Termination shall not become effective until five days after the date of the posting. The secretary shall also issue, at the time of the posting, a public notice to newspapers of general and statewide circulation concerning the secretary’s intention to terminate the marketing order or marketing agreement.

SEC. 3.

 Section 59111 of the Food and Agricultural Code is amended to read:

59111.
 (a) Upon the issuance of any order that makes effective a marketing order or marketing agreement, or any suspension, amendment, or termination of a marketing order or marketing agreement, a notice of the issuance shall be posted on the department’s Internet Web site. A marketing order or marketing agreement, or any suspension, amendment, or termination of it, shall not become effective until five days after the date of the posting. The secretary shall also mail a copy of the notice to every person that is directly affected by the terms of the marketing order or marketing agreement, or the suspension, amendment, or termination of the marketing order or marketing agreement, whose name and address are on file in the office of the secretary, and to every person that files in the office of the secretary a written request for the notice.
(b) This section does not apply to the termination of any marketing order or marketing agreement under Section 59087.

SEC. 4.

 Section 64563 of the Food and Agricultural Code is amended to read:

64563.
 Upon the issuance of any regulations that affect this chapter, a copy of the regulations shall be posted on the department’s Internet Web site. A copy of the regulations shall also be published in a newspaper of general circulation published in Sacramento, California, and in any other newspaper that the secretary may prescribe. No regulation shall become effective until five days after the date of the posting and publication. The secretary shall mail a copy of the notice of the issuance of the regulations to every person that is directly affected by the regulations whose name and address may be on file in the office of the secretary and to every person who files in the office of the secretary a written request for the notice.